Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1953 Supreme(SC) 85

SUPREME COURT OF INDIA
5th October 1953.
MAHAJAN, B.K. MUKHERJEA AND JAGANNADHA DAS, JJ.
Sidheshwar Mukherjee, Appellant
Versus
Bhubneshwar Prasad Narain Singh and others, Respondents.
Civil Appeals Nos. 53 to 55 of 1951.
Advocates appeared
Shri C. K. Daphtary, Solicitor-General for India (Shri Rameshwar Nath. Advocate with him), instructed by Shri Rajinder Narain Agent, for Appellant; Shri Ratan Lal Chowla, Senior Advocate (Shri K. N. Aggarwal, Advocate, with him), instructed by Shri P. C. Aggarwal, Agent (for Nos. 1 and 2) and Shri H. J. Umrigar. Advocate, (Guardian ad Litem) (for Nos. 3 and 4), for Respondents.

Advocates:
C.K.DAFTARY, H.J.Umrigar, K.N.AGRAWAL, P.C.AGRAWAL, RAJENDER NARAIN, RAMESHWAR NATH ROY, RATAN LAL CHAWLA

The sons are liable to pay the father's debt if it is not tainted with immorality and the creditor can enforce this liability by attachment and sale of the sons' interest in the same manner as if it was a personal debt due by them.

Headnote:
PARTITION - Joint Hindu Family - Liability of Sons to pay Father's Debt - Extent of Share Acquired by Purchaser in Execution Sale - Right to Joint Possession.
Fact of the Case:

The plaintiff purchased the undivided interest of the coparceners in a joint property at an execution sale. The question arose as to the extent of the share acquired by the plaintiff and whether he was entitled to joint possession from the date of purchase.
Finding of the Court:

The court held that the plaintiff acquired only the undivided interest of the coparceners in the joint property and was not entitled to joint possession from the date of purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favor.
Issues: 1. Whether the sons were liable to pay the father's debt? 2. Whether the interest of the sons in the joint property could be attached and sold without making the sons parties to the suit and the execution proceedings? 3. Whether the plaintiff was entitled to joint possession from the date of purchase?
Ratio Decidendi: 1. The sons were liable to pay the father's debt as it was not tainted with immorality and the creditor could enforce this liability by attachment and sale of the sons' interest in the same manner as if it was a personal debt due by them. 2. The interest of the sons in the joint property could be attached and sold without making the sons parties to the suit and the execution proceedings as the creditor had an option to proceed against the father's interest alone or to put up to sale the son's interest also. 3. The plaintiff was not entitled to joint possession from the date of purchase as he did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase.
Final Decision: The appeal was allowed, the judgment and decree of the High Court were set aside and those of the trial Judge restored. The plaintiff was awarded costs of the Supreme Court as well as the court below. The Money Appeals were dismissed with costs.

Judgement Key Points

Key Points: - The sons were liable to pay their father’s debt as it was not immoral, and the creditor could enforce this by attaching and selling the sons’ interest (!) (!) . - The interest of the sons in joint property could be attached and sold without making them parties to the suit (!) (!) . - The plaintiff was not entitled to joint possession from the date of purchase as he did not acquire title to any defined share (!) (!) .

Whether sons are liable to pay their father's debt if it is not tainted with immorality?

Whether a creditor can enforce this liability by attachment and sale of the sons' interest in joint property?

Whether a plaintiff who purchased undivided interest at execution sale is entitled to joint possession from the date of purchase?

Judgment

B. K. MUKHERJEA J.: Civil Appeal No. 53 of 1951. This appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated 8-9-1948, modifying those of the Additional Subordinate Judge, Moihari, passed in Partition Suit No.108/6 of 1943/46. There were two Money Suits between the same parties which, were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal. Civil Appeals Nos. 54 and 55 of this court arise out of these appeals and we will deal with them separately.

2. So far as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title. The plaintiff averred that he was entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other hand that the plaintiff s title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in this appeal.

3. To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1 Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932.

Panchanan instituted a suit in the court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the court of the Subordinate Judge at Motihari. In course of these proceedings, the right, title and interest of the judgment-debtor in the properties in suit which was described as amounting to 4 annas share in the same, was put up to sale and purchased by the decree-holder himself on 7-9-1932. The purchaser got delivery of possession on 25-1-1935.

" It is admitted that at the time of the sale, Bhubneshwar along with his grand-father Bishun Prakash, his father Lachmi Prasad and his two sons who are defendants 2 and 3 in the suit, constituted an undivided Hindu family, of which apparently his grand-father was the karta; and it is not disputed that if a partition had taken place at that time, Bhubneshwar Prasad along with his sons would have got 4 annas share in the joint ancestral property.

Panchanan sold the interest purchased by him at the execution sale to the plaintiff by a conveyance dated 1-2-1935 and it is on the strength of this conveyance that the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties. Bhubneshwar and his three sons, to with defendants 2, 3 and 4, are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties. The defendants 5, 6 and 7 were impleaded as parties defendants on the allegation that they held different portions of the joint properties as zarpeshgidars under the 12 annas proprietors.

4. The suit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that in the Money Suit was Instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided Interest in the joint family properties and not that of his sons passed by the sale. Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone the

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